518 F.2d 466 (D.C. Cir. 1975), 74-1285, Committee for GI Rights v. Callaway

Docket Nº:74-1285.
Citation:518 F.2d 466
Party Name:The COMMITTEE FOR GI RIGHTS et al., Appellees, v. Honorable Howard H. CALLAWAY, Secretary of the Army, et al., Appellants.
Case Date:September 02, 1975
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 466

518 F.2d 466 (D.C. Cir. 1975)

The COMMITTEE FOR GI RIGHTS et al., Appellees,

v.

Honorable Howard H. CALLAWAY, Secretary of the Army, et al.,

Appellants.

No. 74-1285.

United States Court of Appeals, District of Columbia Circuit

September 2, 1975

Argued April 23, 1975.

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David F. Addlestone, Washington, D. C., with whom Susan H. Newman, Joel M. Gora, Melvin L. Wulf, New York City, Arpiar G. Saunders, Washington, D. C., Robert Rivkin, Howard DeNike, San Francisco, Cal., were on the Brief for appellees.

Edwin E. Huddleson, III, Atty., Dept. of Justice, with whom Carla A. Hills, Asst. Atty. Gen., Earl J. Silbert, U. S. Atty., and William Kanter, Atty., Dept. of Justice, were on the Brief for appellants. Michael A. Katz & Royce C. Lamberth, Asst. U. S. Attys., at the time the brief was filed, also entered appearances for appellants.

Charles M. Butler, III, Dallas, Tex., filed a brief on behalf of Senators John Tower and Strom Thurmond, as amici curiae urging reversal.

Before MacKINNON and WILKEY, Circuit Judges, and JAMESON, [*] United States Senior District Judge for the District of Montana.

Opinion for the Court filed by Senior District Judge JAMESON.

JAMESON, Senior District Judge:

This is an appeal from an order of the district court declaring unconstitutional

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and enjoining the enforcement of certain provisions of the United States Army's drug abuse prevention and control program embodied in USAREUR Circular 600-85. 1

Background

Recognizing "that drug abuse is a profoundly serious national problem that is having a grave effect on the Armed Forces", 2 the Congress in 1971 directed the Secretary of Defense to "prescribe and implement procedures, utilizing all practical available methods, and provide necessary facilities to (1) identify, treat, and rehabilitate members of the Armed Forces who are drug or alcohol dependent persons, . . .". Pub.L.No.92-129, Title V (Sept. 28, 1971). Pursuant to this directive, the United States Army in Europe (USAREUR) embarked on a program to eradicate drug abuse in its ranks. In the initial stages of the program, the details were left to local commanders. As a result of alleged abuses, plaintiffs-appellants, 18 members of the Army stationed in Europe, 3 and an organization known as the Committee For GI Rights, 4 commenced this class action on behalf of approximately 145,000 GIs 5 in the Army's European Command, claiming that various features of the drug abuse prevention plan were unconstitutional and seeking declaratory and injunctive relief.

In an order denying plaintiffs' motion for a preliminary injunction, the district court directed that the Secretary of the Army file "a detailed written statement of the procedures and directives it intend(ed) to use in carrying out the drug elimination program in the German Command". In response to this directive, the Secretary of the Army promulgated USAREUR Circular 600-85, outlining the rehabilitation and prevention procedures of the drug program and eliminating some of the objectionable features previously urged by the plaintiffs. The action was thereby narrowed to the constitutionality of the Circular.

The Drug Control Program

The purpose of the drug control program as outlined in Circular 600-85 is to restore to effective and reliable functioning members of the Armed Forces with problems attributable to alcohol and other drugs; and to eliminate from the service those who cannot be effectively restored in a reasonable period of time. The program consists primarily of three phases: identification, evaluation, and rehabilitation. The Circular classifies abusers as (a) those suspected 6 of alcohol or drug abuse; (b) those who are identified

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7 as alcohol or drug abusers; (c) those whose urinalysis indicates a positive drug content; and (4) those who are medically confirmed 8 alcohol or drug abusers. Identification of drug users may be made through inspections, described infra, which are authorized under the Circular.

When a soldier has been identified as a possible drug user, on the basis of an inspection or otherwise, he is subject to mandatory drug processing. Initially, he is confronted by his commanding officer, who informs him of the evidence against him, warns him of his rights and gives him the opportunity to provide additional evidence on his behalf. 9 The commanding officer thereafter may refer the soldier to a Community Drug and Alcohol Assistance Center (CDAAC), 10 which interviews the identified abuser and determines the nature and extent of drug or alcohol involvement. If there is credible evidence of drug abuse, the soldier is sent to a Medical Treatment Facility (MTF) for clinical evaluation. At the MTF, a physician, applying medical standards, determines whether the soldier is a drug abuser. Counsel is provided during the MTF interviews if requested. When a soldier has been medically determined to be a "confirmed drug abuser", the MTF either admits him to a hospital or returns him to the CDAAC for design of a formal 60 day rehabilitation program. Rehabilitation programs are individualized and are designed to involve the commander, CDAAC counselor, other counseling services and medical facilities. Periodic urinalysis and other testing may be part of the rehabilitation program. In addition, the commander is authorized to impose various administrative sanctions 11 (discussed infra) not as punishment but as part of the rehabilitation program.

At the end of the 60 day rehabilitation period, the commanding officer, with the assistance of the CDAAC, makes a determination as to rehabilitative success or failure. If the soldier is determined to be a "rehabilitative failure", he is processed for administrative discharge under circumstances that may adversely affect his military record. 12 If he is a rehabilitative success, active rehabilitation ceases, followed by 300 days of follow-up testing and observation, including unannounced urinalysis testing twice a month.

While the primary purpose of the drug control program is the rehabilitation of

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drug abusers, the Circular does provide that disciplinary action may be taken when the facts and circumstances associated with drug abuse indicate violations of the law or Army regulations. 13 In addition, the Circular, together with Army Regulation 340-17, permits military authorities to advise other governmental agencies, upon request, of a discharged soldier's former involvement with drugs. The record of a soldier's drug abuse may also be considered by the Army in connection with future personnel action, i. e. duty assignments and promotions.

Poster Regulation

The USAREUR's poster regulation (Circular 600-85, para. 14d(4)) permits commanding officers to prohibit the display on barrack walls of posters which in their judgment constitute a "clear danger to military loyalty, discipline or morale". The regulation does not provide for confiscation of the poster; nor does it prohibit a soldier from showing the poster to others. The regulation explicitly refers to and incorporates the guidelines set forth in a letter entitled "Guidance on Dissent", AGAM-P, Headquarters, Department of the Army, 23 June 1969, which provides in part:

"Dissent, in the literal sense of disagreement with policies of the Government, is a right of every citizen. In our system of Government, we do not ask that every citizen or every soldier agree with every policy of the Government . . . The right to express opinions on matters of public and personal concern is secured to soldier and civilian . . . The interest of the Government and the public in maintenance of an effective and disciplined Army for the purpose of National defense justifies certain restraints upon the activities of military personnel which need not be imposed on similar activities by civilians."

Decision of the District Court

By memorandum opinion dated January 14, 1974, D.C., 370 F.Supp. 934, and order entered February 8, 1974, the district court on cross-motions for summary judgment granted the plaintiffs-appellees partial relief by holding certain provisions of USAREUR Circular 600-85 unconstitutional and issuing a mandatory injunction. Specifically, the court held that the warrantless drug inspections authorized by the Circular without a showing of probable cause were not justified by military necessity and that the use of the information gained by the searches as a basis for imposing punitive sanctions, including less than honorable discharge, violated the soldier's rights under the Fourth Amendment. The court did, however, state in its order of February 8, 1974 that the Army could continue "conducting drug inspections or requiring participation in a drug testing and rehabilitation program without probable cause, so long as evidence or information obtained as a result of such procedures is not used as a basis for any punitive action . . .".

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The court held further that the "administrative sanctions", which the Circular authorizes the commanding officer to impose after a soldier has been designated a confirmed drug abuser by the MTF, significantly affected a GI's liberty or property, and imposition of those sanctions without affording the GI a prior hearing constituted a violation of the GI's right to due process under the Fifth Amendment. The court also held that the Circular's poster regulation was impermissible, finding that the "clear danger to military loyalty, discipline, or morale" standard was "too vague a standard by which to regulate First Amendment liberties". Finally, the court held that the provisions permitting the dissemination of drug information to non-military government agencies and to civilian applicants violated 21 U.S.C. § 1175.

Issues on Appeal

The following issues are presented:

...

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